Ramey v. Stevedoring Services of America

• Decision Date: 22 January 1998
• Docket Number: Nos. 96-71069,97-70091,s. 96-71069
• Citation: 134 F.3d 954
• Parties: , 98 Cal. Daily Op. Serv. 548, 98 Daily Journal D.A.R. 776 Thomas A. RAMEY, Petitioner, v. STEVEDORING SERVICES OF AMERICA; Jones Oregon Stevedoring Company; Eagle Pacific Insurance Company; Director, Office of Workers Compensation Programs, Respondents. In the Matter of: Dean J. BELLMER, Petitioner, v. STEVEDORING SERVICES OF AMERICA; Jones Oregon Stevedoring Company; Eagle Pacific Insurance Company, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 954

134 F.3d 954

1998 A.M.C. 779, 98 Cal. Daily Op. Serv. 548,

98 Daily Journal D.A.R. 776

Thomas A. RAMEY, Petitioner, v. STEVEDORING SERVICES OF AMERICA; Jones Oregon Stevedoring

Company; Eagle Pacific Insurance Company;

Director, Office of Workers Compensation

Programs, Respondents.

In the Matter of: Dean J. BELLMER, Petitioner, v. STEVEDORING SERVICES OF AMERICA; Jones Oregon Stevedoring

Company; Eagle Pacific Insurance Company, Respondents.

Nos. 96-71069, 97-70091.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 3, 1997.

Decided Jan. 22, 1998.

Charles Robinowitz, Portland, Oregon, for petitioners.

Jay W. Beattie and William M. Tomlinson, Lindsay, Hart, Neil & Weigler, Portland, Oregon, for respondent employers.

Nathaniel I. Spiller, Deputy Associate Solicitor, United States Department of Labor, Washington, DC, for the Director.

On Petitions for Review of Decisions of the Benefits Review Board. B.R.B. No. 94-2444, B.R.B. No. 93-2471.

Before: SKOPIL, and HAWKINS, Circuit Judges, and MERHIGE, ^* District Judge.

SKOPIL, Senior Circuit Judge:

I.

Congress included a provision in the Omnibus Consolidated Rescissions and Appropriations Act of 1996, P.L. 104-134, 110 Stat. 1321-211, 1321-219 (1996), that was intended to eliminate the backlog of cases pending before the Benefits Review Board. Consistent with that legislation, on September 12, 1996, hundreds of pending appeals from administrative law judges' decisions were summarily affirmed without Board review. Two of those cases are now before us for consideration--claimant longshore workers who sought disability awards due to hearing losses allegedly suffered from exposure to excessive noise on the worksite. One was denied relief upon a finding that he failed to prove the requisite exposure; the other received an award but contested the amount.

Both claimants contend that the automatic affirmance provision of Public Law 104-134 violates constitutional separation of powers principles. Their employers counter that the law is constitutional, and that by virtue of its application to these cases, we lack appellate jurisdiction. We reject the constitutional challenge; the law does not violate separation of powers. We conclude that we possess jurisdiction to review the merits of claimants' disability determinations. We reverse and remand both cases to the Board for a determination of benefits consistent with this opinion.

II.

Tom Ramey retired after twenty-seven years on the waterfront. After his retirement, he had four audiograms, all indicating a hearing loss. John Bellmer was a longshore worker for over thirty years and alleges that he was constantly exposed to excessive noise on the job. Bellmer had three audiograms, one before he retired and two after; all showed significant hearing loss. Both claimants filed disability claims against their employers pursuant to provisions of the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901-950.

Ramey's claim was rejected by an Administrative Law Judge on the ground that there was insufficient credible evidence that he had been exposed to injurious levels of noise during the course of his employment. Bellmer's claim was granted, but his award was calculated based on the lower average wage rate at the time of his first audiogram rather than the higher wage rate applicable to his later exams. Both Ramey and Bellmer appealed to the Benefits Review Board.

Pursuant to Public Law 104-134, their disability determinations were affirmed, along with all others pending more than one year before the Board on September 12, 1996. Ramey and Bellmer each received a notice from the Board, stating that "consistent with Public Law 104-134, this decision pending review by the Benefits Review Board is considered affirmed and shall be considered the final order of the Board for purposes of obtaining review in the United States courts of appeal." Each notice contained a "Notice of Appeal Rights" which, inter alia, advised claimants that they could file a motion for reconsideration to the Board, and that a timely motion for reconsideration would stay the sixty-day period during which a petition for review must be filed with the court of appeals.

Ramey and Bellmer each submitted a timely motion for reconsideration, which the Board denied. Both sought review in this court. Their petitions were filed within sixty days of the denial of reconsideration, but beyond sixty days from the Board's initial affirmances.

III.

Claimants assert that Congress' elimination of the Board's review of their cases violates separation of powers principles. We disagree. The Supreme Court upheld the original review scheme of longshore workers' benefits against a separation of powers claim. See Crowell v. Benson, 285 U.S. 22, 54, 52 S.Ct. 285, 293-94, 76 L.Ed. 598 (1932). The process in its current form has also survived a separation of powers challenge. See Kalaris v. Donovan, 697 F.2d 376, 381, 399-400 (D.C.Cir.1983) ("[F]or constitutional purposes, the organizational scheme created in the 1972 amendments does not differ from the Crowell version."). Nothing in this most recent legislation causes us to conclude that the review process for longshore workers' disability determinations is unconstitutional.

Separation of powers principles are intended to preserve the constitutional system of "checks and balances ... built into the tripartite Federal Government as a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other." Buckley v. Valeo, 424 U.S. 1, 122, 96 S.Ct. 612, 684, 46 L.Ed.2d 659 (1976). Consistent with those principles, Congress is free to change the results in pending cases by amending the underlying law, see Gray v. First Winthrop Corp., 989 F.2d 1564, 1569-70 (9th Cir.1993); to redefine the jurisdiction of lower federal courts, see Duldulao v. I.N.S., 90 F.3d 396, 400 (9th Cir.1996); and to "vest judicial power in adjuncts to Article III courts," In re Mankin, 823 F.2d 1296, 1304 (9th Cir.1987).

The Board is a constitutionally permissible adjunct tribunal. See Metropolitan Stevedore Co. v. Brickner, 11 F.3d 887, 890 (9th Cir.1993); Kalaris, 697 F.2d at 381, 399-400. Congress has broad authority in this area; Congress may, for example, "prescribe remedies" and require claimants to pursue their claims before these "particularized tribunals." Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 83, 102 S.Ct. 2858, 2877-78, 73 L.Ed.2d 598 (1982). Consistent with that power, Congress may impose a time limitation on the Board's review of cases, particularly when such a deadline serves to hasten review by the courts of appeals. Given that adjunct tribunals "must be limited in such a way that 'the essential attributes' of judicial power are retained in the Article III court," Mankin, 823 F.2d at 1304, Congress' action here is particularly appropriate because it further limits the Board's role, giving even greater oversight to Article III courts. We conclude that Public Law 104-134 does not violate separation of powers principles.

IV.

Employers, joined by the Director of the Office of Workers' Compensation Programs, argue that we lack jurisdiction to consider the merits of these cases on the ground that claimants' petitions for review to this court were not timely. Although acknowledging that claimants' timely motions for reconsideration to the Board would normally toll the sixty-day period for filing a petition in this court, see 20 C.F.R. § 802.406, employers assert that Public Law 104-134 divested the Board of jurisdiction so that claimants' motions for reconsideration were of no effect and did not toll the time for filing. Because claimants' petitions for review were filed more than sixty days from the date the Board affirmed the appeals, employers contend that we do not have jurisdiction. See Felt v. Director, OWCP, 11 F.3d 951, 952 (9th Cir.1993) (timely notice of appeal is required to vest jurisdiction in court of appeals).

Employers present a strong argument. Moreover, we give the Director's statutory interpretation "considerable weight." See Director, OWCP v. Palmer Coking Coal Co., 867 F.2d 552, 555 (9th Cir.1989). Nonetheless, we do not agree that Public Law 104-134 should be interpreted to preclude motions for reconsideration. The LHWCA provides a mechanism for the Board to reconsider a panel decision. See 33 U.S.C. § 921(b)(5). The Board's regulations plainly state that "[a]ll requests for reconsideration shall be reviewed by the Board and shall be granted or denied in the discretion of the Board." 20 C.F.R. § 802.409 (emphasis added). Public Law 104-134 is silent on motions for reconsideration; nothing in the law indicates it was intended to rewrite this aspect of the regulatory structure.

Congress provided in Public Law 104-134 that when the Board fails to issue a decision within a year, the parties have the opportunity to pursue review in the courts of appeals instead of facing further months or years of delay. Nothing in Public Law 104-134, however, purports to deprive parties of other options, including motions for reconsideration. We decline to read an appropriations act so broadly that we deprive the parties of established rights. See Environmental Defense Ctr. v. Babbitt, 73 F.3d 867, 871 (9th Cir.1995) (noting that repeals by implication are disfavored "when the claimed repeal rests solely in an Appropriations Act") (quoting Tennessee Valley Authority v. Hill, 437 U.S. 153, 190, 98 S.Ct. 2279, 2299-2300, 57 L.Ed.2d 117 (1978)). Whatever deference we owe the Director's interpretation "stops short of contravening plain statutory language." Palmer Coking Coal, 867 F.2d at 555. Accordingly, we conclude that claimants' timely motions for reconsideration to the Board tolled the sixty-day period for filing petitions for review to this court. Claimants' petitions for review are therefore timely; we have...